Death row inmates often wait indefinitely for execution

The numbers seem staggering: California is the most populous state and has the largest number of death row inmates but in recent history has executed fewer than even the diminutive Delaware.

Scott Smith

The numbers seem staggering: California is the most populous state and has the largest number of death row inmates but in recent history has executed fewer than even the diminutive Delaware.

For more than a year, no death sentences have been carried out on California inmates since attorneys for Stockton's condemned Michael Angelo Morales challenged the state's method of lethal injection. Death sentences are not likely to be carried out anytime soon while officials revamp the state's lethal injection procedures.

The U.S. Supreme Court reinstated capital punishment in 1977, yet 14 other states have executed more inmates. Texas - the state with the busiest death chamber - executed 24 inmates last year alone.

Still, California's stalemate over capital punishment - and the sluggish path from conviction to carrying out a death sentence - is not that unusual, said Richard Dieter, executive director of the Death Penalty Information Center.

"In those states where it goes smoothly, almost all of the key players are lined up in favor," Dieter said, referring to the public, prosecutors, state and federal courts. "If there's one hesitation in the chain on the way executions are carried out, it does slow down."

In California's case, U.S. District Judge Jeremy Fogel delayed the execution of Morales, 47, who is sentenced to die for the 1981 rape and murder of 17-year-old Terri Lynn Winchell. Morales' case has blocked California from executing any inmates.

The Stockton man came within steps of the death chamber on Feb. 21, 2006.

Fogel stayed the execution when Morales' attorneys argued that California's method of lethal injection amounts to cruel and unusual punishment in violation of the Eighth Amendment.

In December, Fogel validated their claims, calling California's execution protocol unconstitutional. State officials have said they would unveil a revised method May 15.

California isn't alone as one of 11 states facing serious challenges to lethal injection, Dieter said.

Last month, the governors of North Carolina and Tennessee halted executions, citing challenges to lethal injection and concerns about flawed execution procedures.

Dieter predicted the U.S. Supreme Court will take one of these as a symbolic case to resolve the wave of lethal injection challenges across the country.

This won't happen soon, he said. In California, for example, Morales' case has to first reach the 9th U.S. Circuit Court of Appeals - considered hostile toward capital punishment. It's anybody's guess if or when Morales is ever executed, Dieter said.

Yet, it is nothing new for California's death chamber to sit idle for a year or two, said Elisabeth Semel, who runs the University of California, Berkeley, Boalt Hall School of Law death penalty clinic, which trains law students to defend condemned inmates.

California's death chamber was unused for 25 years until the 1992 execution of Robert Alton Harris.

The U.S. Supreme Court in the late 1960s suspended executions in all states for a decade, when it and various states found that juries were handing down death sentences without uniformity.

In 1977, the High Court instituted sentencing guidelines nationally, making inmates eligible for execution if they were convicted of murder along with an aggravating factor, such as torture and multiple murder, among other changes.

Semel said California didn't resume executions until 1992 because inmates' cases were travelling through the complex appeals and habeas process.

Other states resumed executions quickly because of a combination of conservative judges, less conscientious defense attorneys and a less rigorous appeals process, she said, citing Texas and Virginia as examples.

"The rate at which we execute people (in California) has been mercifully slow," said Semel, who added crime rates show Californians are no safer with the death penalty enacted.

It's also slow in California because there are not enough qualified attorneys to represent more than 650 death row inmates, she said.

Attorneys with small firms are paid little for the significant amount of time it takes to mount legal challenges.

"You can't say a lawyer qualified to handle a traffic ticket is qualified to represent them," she said. "We have a system that is utterly broken."

There's a purpose to the long appeals process, making sure the state appropriately wields its power to carry out the sentence, Semel said.

Robert Himelblau, a prosecutor in the San Joaquin County District Attorney's Office, blamed the 9th Circuit for part of the prolonged process, saying it moves at a snail-like pace. He has prosecuted two men now on death row.

Himelblau cited as an example the death sentence of Blufford Hayes Jr., overturned by the 9th Circuit two years ago.

Hayes, 51, was sentenced to death for the 1980 murder and robbery of a manager of a Stockton motel where Hayes lived. Hayes is accused of binding his victim's hands and feet with a coat hanger and stabbing him 23 times before stealing $23 and cigarettes.

Hayes in 2005 was sent back to San Joaquin County for a new trial because the appellate judges said the prosecutor, Terrence Van Oss, now a San Joaquin County Superior Court judge, concealed a deal with a jailhouse snitch whose testimony helped secure the death sentence. Hayes awaits a new trial.

Himelblau said that in death penalty cases he focuses on his job, rather than thinking about a 30-year-old defendant who may never see the death chamber.

That lag time is a reality, but district attorneys prosecute nonetheless, he said.

"We do it simply because that's the right thing to do at that particular time," he said. "That's what we're charged with."

David Senior, Morales' lead attorney from Los Angeles, said the theme across the country he has noticed in the past year is a disregard for protecting citizens - in this case condemned inmates - from cruel and unusual punishment.

Senior won five days of hearings before Fogel in September, widely considered a historic probe into the gritty details of lethal injection.

The hearings revealed California's poorly trained executioners and an inadequate death chamber, among other flaws, Fogel later found.

The states do not ensure checks and balances to make sure condemned inmates won't be subject to unnecessary pain and suffering, Senior said.

"There's no presumption that a violation could occur," Senior said. "We do know now that we've peeled back the onion."